Barry Scheck talks Louima, Lyons, and whether the state has executed an innocent man

INTERVIEW BY ERIK LUNDEGAARD

In 1992, Barry Scheck and Peter Neufeld founded
the Innocence Project, a clinical program within
the Benjamin N. Cardozo School of Law that
focused on overturning wrongful convictions using
DNA evidence. Since then hundreds of convictions
have been overturned thanks to DNA evidence,
and their program has become a network, with
organizations around the nation and globe. All
told, innocence organizations have been part of
nearly 400 exonerations worldwide. We spoke
with Scheck this summer.

Q: You certainly wear a lot of hats: professor at
Cardozo Law School, founder of the Innocence
Project …

A: … and the third is the private law firm that
Peter Neufeld and I founded with Johnnie
Cochran and our partner Nick Brustin. It’s now
called Neufeld Scheck & Brustin. It’s had a lot of
success in a variety of civil rights cases—not just
getting judgments and compensation for people
whose civil rights are violated, but also in getting
injunctive relief in settlements that you otherwise
can’t get under civil rights laws.

Q: Example?

A: We sued the city of Cleveland and the
Cleveland Clinic in a case involving Anthony
Michael Green, but there was a lot of scandalous
testimony from a serologist and hair analyst at
the Cleveland Crime Lab named Joseph Serowik.

When the case was settled, our client provided
a fund of $500,000—as I recall—to have an
independent audit done of the Cleveland Crime
Lab, which in turn led to the discovery of other
cases where convictions were vacated.

The firm really started when we represented
Abner Louima in the case where Justin Volpe and
other cops assaulted Abner in a police station in
Brooklyn. Before we settled that case—which at
the time was the highest settlement in the city of
New York in a police brutality case—we also got
non-economic relief from the city of New York.

We also sued the police union, the PBA, and got
relief: not just monetary relief, but non-economic
relief, to try to reform the system. That’s always
been the purpose of the firm.

Q: To take cases that result in some kind of
systemic change?

A: Systemic change happens when you win monetary
awards for violations of people’s civil rights. You can’t
find that when you just get an exoneration.

So we did Louima. There were four young men
that were shot on the New Jersey turnpike by
state troopers in a racial profiling case. They were
basketball players. We did that one and settled it.

Then we represented some black state troopers
who had been discriminated against because they
had blown the whistle on the racial profiling on
the New Jersey turnpike. All that happened as we
started this law firm.

We try to take on creative and remunerative—
for the clients—civil rights work. It’s a shame
that you can’t really get, since the Lyons case,
injunctive relief in civil rights cases.

Q: The Lyons case?

A: Years ago there was a case [involving
Chief] Daryl Gates and the Los Angeles Police
Department, [and] a chokehold that led people to
die. They tried to move for injunctive relief and the
United States Supreme Court said you can’t get
injunctive relief in a civil rights case unless you can
demonstrate that you will be choked again by the
LAPD. So that was a virtually impossible standard
to get standing in these civil rights cases.

Eventually, Congress passed a statute allowing
the civil rights division to come in when there were
these continuing potential civil rights violations:
the 14141 Statute, right? And it’s these consent
decrees that the U.S. Department of Justice obtains.

Technically they can hold police departments in
trusteeship. You see that all across the country.

That’s what’s going on right now—in Cleveland, in
Ferguson, in New Orleans, you name it.

I have to say that Vanita Gupta, the new head of
the civil rights division, has done a remarkable job.

Q: In what way?

A: She’s just great. Everything that’s going on
in the Justice Department now and the civil
rights division has been extraordinary in terms
of trying to get these consent decrees, and best
practices, and reform in these municipalities.

That’s sort of the background to all this. It’s
very rare that you can do what we did in some
of these private cases.

Municipalities will not correct these
constitutional abuses unless they are sued and
you collect money from them. That’s just the
nature of the American system in terms of tort
liability, and civil rights cases are extraordinarily
difficult because there is absolute immunity for
prosecutors (which is a serious problem), qualified
immunity for police actors (they get interlocutory
appeals), and it’s an extraordinarily complicated
area of the law. You’ll find that there are just a
few boutique law firms that do it. It’s not by any
means a gigantic bar. So it’s a real specialty.

Q: According to your website, there are 56

Innocence organizations around the country
and 13 abroad, including one in China.

A: Yes. I was in China the other month, with
one of the people from the Taiwan Association
for Innocence.

Q: The Chinese legal system comes from such a
different place than our own.

A: [In] Japan, mainland China and Taiwan, they
expect a confession in every case. So they have
a real problem with false confessions in those
countries. In mainland China now, when I went
over there, they reported 200 documented
wrongful convictions, including two cases
where innocent people were executed. So the
Chinese government is paying some attention
to this.